Transcript Slide 1
Tax issues in Business Re-organisation
by
Mr. Dileep C. Choksi
12 November 2005
1
Index
• • Income-tax issues of business re-organisations such as • • • Amalgamation De-merger Succession of partnership firm by a company • Succession of a sole proprietary concern by a company Relevant provisions of • • Co. Act SEBI Regulations • • Listing agreement FEMA 2
Amalgamation / Demerger / Succession of PF
• Provisions relating to amalgamation / demerger / succession of PF by company seem to have been introduced on the assumption these re-organisation would otherwise lead to taxation • • Provisions ill conceived Rule of construction – Court must disregard the assumption of the legislature on the basis of which the provisions were inserted 3
Income-tax issues of Amalgamation
4
Amalgamation
• Amalgamation defined in S.2(1B) of the ITA A Co. Shldrs. Scenario 1 A Co. Shldrs. A Co.
A Co.
B Co. Shldrs. + B Co. Shldrs. + B Co.
B Co.
= = A Co. Shldrs. B Co. Shldrs. A Co. Shldrs. Scenario 2 B Co. Shldrs. C Co.
B Co.
5
Amalgamation …
A Co. Shldrs. Hold Co.
Hold Co. + A Co. Shldrs. Sub. Co.
= Scenario 3 Hold Co.
Circular No. 5P (LXXVI-63) dated 9 October 1967 A Co. Shldrs. Scenario 4 Hold Co.
Sub. Co.
Assets distributed to Hold Co. on winding up of Sub. Co.
A Co. Shldrs. = Hold Co.
6
Amalgamation …
A Co. Shldrs. Scenario 5 B Co. Shldrs. Foreign Co.
+ Indian entity B Co.
A Co. Shldrs. = B Co. Shldrs. Indian entity C Co.
A Co. Shldrs. Scenario 6 B Co. Shldrs. Undertaking of A Co.
+ B Co.
= A Co. Shldrs. B Co. Shldrs. B Co.
‘demerger’ 7
Amalgamation …
• • Appointed Date v. Effective Date • Marshall Sons & Co. 223 ITR 809 (SC) Implications for the amalgamating company • Transfer of the capital assets disregarded for S.45 of the ITA – refer S.47(vi) • Benefit available only if the amalgamated company is an Indian Company [defined in S.2(26) of the ITA] 8
Amalgamation …
Amalgamation of foreign companies, one of which holds shares of an Indian Company A Co. Shldrs. Shldrs. A Foreign Co.
X % Indian Co.
+ B Co. Shldrs. B Co. Shldrs. A Co. Shldrs. ≥ 25% sh.
B Foreign Co.
= B Foreign Co.
X % Shldrs. Indian Co.
No Capital Gains tax liability in India in the hands of A Foreign Co. – provided conditions satisfied refer S.47(via) of the ITA 9
Amalgamation …
• • • Capital gains tax exemption provided a) 25% of the shareholders of the amalgamating foreign company continue to remain shareholders of the amalgamated foreign company; and b) such a transfer does not attract tax on capital gains in the country, in which the amalgamating company is incorporated Merger of a WOS into the parent or vice versa will not satisfy requirement (a) – can one take recourse to the definition as contained in S. 2(1B) of the ITA?
Meaning of the words ‘continue to remain shareholders’? For what period?
10
Amalgamation …
• Implications for the amalgamated company • • • • Block of assets of the amalgamated company to be increased by the WDV of the assets of the amalgamating company – Expln. 2(b) below S.43(6) of the ITA Depreciation allowance to be apportioned between the entities on the basis of number of days assets used by each entity – 5 th proviso to S.32 of the ITA Cost of acquisition of non-depreciable assets = cost to previous owner – S.49(1)(iii)(e) of the ITA Period of holding = period of holding of previous owner – Expln. 1(i)(b) below S. 2(42A) of the ITA 11
Amalgamation …
• • Deduction from profits as was available to the amalgamating company prior to the amalgamation would be available to the amalgamated company – relevant provisions S.10A / 10 AA / 10B / 80-IA / 80 - IAB / 80 – IB, etc.
Deduction of expenditure also available to the amalgamated company (illustrative) • • Capital expenditure on scientific research – S.35(5) of the ITA Capital expenditure incurred before 1 April 1998 for acquisition of patent rights or copyrights – S. 35A(6) of the ITA • Amortisation of VRS expenditure – S.35DDA(2) of the ITA 12
Amalgamation …
Losses of amalgamating company – S.72A of the ITA • • Amalgamating Co. owns an industrial undertaking / ship / hotel or amalgamation of banking co.
Business loss Unabsorbed depreciation Speculation loss Lapses Capital loss Lapses House Property loss Lapses ‘industrial undertaking’ defined to include an undertaking engaged in mfg. of ‘computer software’ • IT enabled services covered? – Can one apply definition contained in Ss.10A / 10B / 80 HHE read with Circular of CBDT ‘accumulated loss’ means loss under the head ‘profits and gains of business or profession’ 13
Amalgamation …
• Conditions to be satisfied for availing the benefit of S. 72A of the ITA by – • Amalgamating company should – • • own an ‘industrial undertaking’ or a ship or a hotel or should be a banking company have been engaged in the business in which the loss was incurred or depreciation remains unabsorbed for atleast 3 years • have held continuously as on the date of amalgamation at least 3/4 th of the book value of fixed assets for 2 years prior to the date of amalgamation • Start ups (between 2 to 3 years) will not be able to satisfy these requirements 14
Amalgamation …
• Amalgamated company should – • hold continuously for a minimum period of 5 years from the date of amalgamation at least 3/4 of assets of the amalgamating company • th of the book value Stringent – will impair the ability of amalgamated company to replace old machinery • continue the business of the amalgamating company for at least 5 years from the date of amalgamation • Amalgamating company in business of manufacture of chocolates –post amalgamation machinery used by amalgamated company for manufacture of biscuits – whether condition satisfied?
15
Amalgamation …
• fulfill such other conditions as may be prescribed to ensure revival of the business of the amalgamating company or to ensure that the amalgamation is for genuine business purpose • Subjective test i.e. determination whether amalgamation is for genuine business purpose – once Scheme sanctioned by Court can Income-tax authorities conclude otherwise?
16
Amalgamation …
• • Rule 9C of the IT Rules requires amalgamated company to • • • achieve at least 50% of installed capacity within 4 years of the date of amalgamation • • Same machinery for different outputs has different installed capacity – how does one determine the installed capacity and satisfy this test Indicate installed capacity in the Scheme for each product that is capable of being manufactured Maintain 50% capacity for the 4 th and 5 th year Submit accountant’s certificate Non-compliance of conditions results in loss or depreciation allowance allowed earlier being taxed as income of the year in which conditions are not complied with – S.72A(3) of the ITA 17
Amalgamation …
Amalgamation of closely held companies – position of losses – S. 79 A Family Shldrs. 100% 100% B Family Shldrs. A Family Shldrs. B Family Shldrs. 30% 70% A Pvt. Co.
+ B Pvt. Co.
= B Pvt. Co.
Surviving entity - has losses S. 79 could apply • S. 79 applies only to companies other than ‘company in which the public are substantially interested’ – S.2(18) of the ITA • Does not affect the ability to carry forward unabsorbed depreciation • Shri Subhulaxmi Mills Ltd. 249 ITR 795 (SC) • Whether S. 72A overrides S. 79 18
Amalgamation …
• Applicability of S. 79 to Indian Sub. of foreign company • S.79 will not trigger provided 51% of shldrs. of foreign amalgamating company continue to be shldrs. of the foreign amalgamated company – proviso to S.79 of the ITA 19
Amalgamation …
• Implications for the shareholders of amalgamating company • • Transfer of shares of the amalgamating company and receipt of shares of the amalgamated company disregarded for S. 45 of the ITA – refer S.47(vii) of the ITA and accordingly no capital gains tax liability. Exempting provision whether necessary?
• • Rasiklal Maneklal – 177 ITR 198 (SC) • Meaning of ‘transfer’ as contained in the 1922 Act interpreted and held no ‘transfer’ Mrs. Grace Collis – 248 ITR 323 (SC) • S.2(47) of the 1961 Act … ‘extinguishment of any rights therein’ – rights in shares get extinguished 20
Amalgamation …
• • Benefit of S.47(vii) available provided – • • transfer is made in consideration of the allotment of share or shares of the amalgamated company; • • • Issue of debentures or bonds in addition to shares CIT v. M. Ct. M. Corporation Pvt. Ltd. 221 ITR 524 (Mad) CIT v Gautam Sarabhai Trust 173 ITR 216 (Guj.) – contrary amalgamated company is an Indian company Non satisfaction of conditions amalgamation could result in capital gains tax liability in the hands of the shareholders • Fair value of shares of amalgamated company could be regarded as consideration accruing for computing Capital Gains 21
Amalgamation …
• • • Cost of acquisition of shares of amalgamated company = cost of shares of amalgamating company – S.49(2) of the ITA Period of holding to include the period for which the shares of the amalgamating company were held – Expln. 1(c) below S.2(42A) of the ITA Implications for employees who have been granted stock options under a qualifying ESOP • • New plan to be formulated by amalgamated company Fresh stock options to be granted 22
Income-tax issues in a demerger
23
Demerger …
• Demerger defined in S.2(19AA) of the ITA – w.e.f.1 April 2000 A Co. Shldrs. Scenario 1 A Co. Shldrs. Scenario 2 A Foreign Co.
B Co. Shldrs. Undertaking of A Co.
+ B Co.
A Co. Shldrs. = B Co. Shldrs. B Co. Shldrs. A Co. Shldrs. India Branch + B Co.
= B Co. Shldrs. A Co.
Result B Co. + Undertaking of A Co.
Foreign Co.
Result B Co. + India branch of A Co.
Demerger to satisfy requirements contained in S.2(19AA) of the ITA 24
Demerger …
A Co. Shldrs. C Co. Shldrs. Div. X A Co.
Div. Y A Co. Shldrs. + C Co.
= C Co. Shldrs. B Co. Shldrs. Scenario 3 Div.P
B Co.
Div. Q D Co. Shldrs. Sale of Project D Co.
Project 1 Div. Z B Co. Shldrs. D Co. Shldrs. A Co.
Div. X Result C Co.
Div. Y Div. P Project 1 B Co.
Div. Q D Co.
Div. Z Demerger to satisfy requirements contained in S.2(19AA) of the ITA 25
Demerger …
• • ITA recognises transfer of one or more ‘undertakings’ as a ‘demerger’ provided it is carried on in the manner prescribed in S.2(19AA) of the ITA What is an ‘undertaking’? – defined in Expln. 1 below S.2(19AA) of the ITA, to include • • any part of an undertaking; a unit of an undertaking; • • a division of an undertaking; a business activity taken as a whole excludes individual assets or liabilities or any combination thereof not constituting a business activity 26
Demerger …
• • Would these constitute an ‘undertaking’ • Accounting department of a company – may not have revenue streams - could be transferred to another entity • • • IP rights of a company Retail customers (bank accounts / loans, etc.) of a banking company Project under construction – no revenue streams flowing Should demerged company have at least two undertakings to be able to demerge one of them 27
Demerger …
• Conditions to be satisfied for a qualifying ‘demerger’ • • • Transfer of the undertaking should be pursuant to a scheme of arrangement under Ss.391 to 394 of the Co. Act All property and liabilities of the undertaking immediately before demerger become property and liabilities of resulting company All property and liabilities of the undertaking are transferred by the demerged company at values appearing in its books of accounts immediately before demerger – revaluation to be ignored • Can the resulting company record the assets of the undertaking at fair values?
28
Demerger …
• • Resulting company issues, in consideration of the demerger its shares to the shareholders of the demerged company on a proportionate basis • • Only equity or preference or combination of equity and preference?
In addition to shares can the company issue debentures, etc.?
Shareholders holding not less than 3/4 companies th in value of the shares of the demerged company become shareholders of the resulting company or • • If liabilities of the undertaking exceed its assets – should shares be issued? – could result in goodwill in the books of the resulting company or utilisation of its reserves for issue of shares Demerger of undertaking by WOS to Hold Co. – no shares may be issued – is it necessary to desubsidiarise?
29
Demerger …
• • Demerger to satisfy conditions, if any, notified by the Central Government ‘Liabilities’ of the undertaking to include – • • • Liabilities which arise out of the activities or operations of the undertaking Specific loans or borrowings (including debentures) raised, incurred and utilised solely for the activities or operations of the undertakings; and in case, other than those referred to above i.e. the general or multipurpose borrowings to be split in the proportion of assets transferred and retained by the demerged company • Need for relaxation – lenders may not agree • Position if only own funds were utilised for the undertaking that is being demerged?
30
Demerger …
• Implications for the demerged company • • • Transfer of the capital assets disregarded for S.45 of the ITA – refer S.47(vib) – provided the resulting company is an Indian company [defined in S.2(26) of the ITA] Block of assets of the demerged company to be reduced by the WDV of the assets of the undertaking transferred to the resulting company – Expln. 2A below S.43(6) of the ITA • Computation of WDV of each asset of the demerged undertaking – separate accounts to be maintained?
Depreciation allowance to be apportioned between the entities on the basis of number of days assets used by each entity – 5 th proviso to S.32 of the ITA 31
Demerger …
• • Issue of shares by resulting company – not regarded as dividend – clause (v) of S.2(22) of the ITA • Exclusion unnecessary • No release of assets by demerged company to its shareholders Non-qualifying demerger i.e. one of the requirements of S.2(19AA) not met • ‘undertaking’ transferred to resulting company – whether shares issued by resulting company can be regarded as consideration accruing to demerged company?
32
Demerger …
• Issue of shares by resulting company – can this be regarded as dividend to the extent of ‘accumulated profits’ – requirement to pay ‘dividend distribution tax’ in terms of S.115-O of the ITA • • • ‘accumulated profits’ whether includes ‘securities premium account’ Bharat General Fire Insurance Co. Ltd. 53 ITR 108 (SC) • • Consideration due to demerged company discharged by resulting company by issue of its shares to the shldrs. of demerged company Release of assets to the shareholders of the demerged company – S.2(22)(a) of the ITA Consequent to reduction of capital - S. 2(22)(d) of the ITA 33
Demerger …
• Implications for the demerged company • • • Transfer of the capital assets disregarded for S.45 of the ITA – refer S.47(vib) – provided the resulting company is an Indian company [defined in S.2(26) of the ITA] Block of assets of the demerged company to be reduced by the WDV of the assets of the undertaking transferred to the resulting company – Expln. 2A below S.43(6) of the ITA • Computation of WDV of each asset of the demerged undertaking – separate accounts to be maintained?
Depreciation allowance to be apportioned between the entities on the basis of number of days assets used by each entity – 5 th proviso to S.32 of the ITA 34
Demerger …
• Implications for the resulting company • • • • Block of assets of the resulting company to be increased by the WDV of the assets of the undertaking of the demerged company – Expln. 2B below S.43(6) of the ITA Depreciation allowance to be apportioned between the entities on the basis of number of days assets used by each entity – 5 th proviso to S.32 of the ITA Cost of acquisition of non-depreciable assets = cost to previous owner ? Period of holding = period of holding of previous owner ? • Harmonious construction 35
Demerger …
• • Deduction from profits as was available to the undertaking of the demerged company prior to the demerger would be available to the resulting company – relevant provisions S.10A / 10 AA / 10B / 80-IA / 80 - IAB / 80 – IB, etc.
Deduction of expenditure relatable to the undertaking available to the resulting company (illustrative) • • Capital expenditure incurred before 1 April 1998 for acquisition of patent rights or copyrights – S. 35A(7) of the ITA Amortisation of VRS expenditure – S.35DDA(3) of the ITA 36
Demerger …
Losses directly relatable to the demerged undertaking – S.72A of the ITA • • No requirement that the undertaking should be an industrial undertaking / ship / hotel or amalgamation of banking co.
Business loss Unabsorbed depreciation Speculation loss Capital loss House Property loss ‘accumulated loss’ means loss under the head ‘profits and gains of business or profession’ Central Government has power to specify conditions as it considers necessary to ensure that demerger is for a genuine business purpose • No conditions specified as yet 37
Demerger …
• Quantum of ‘Accumulated loss’ and unabsorbed depreciation deemed transferred to resulting company • • Directly relatable – the entire amount Not directly relatable – apportioned between demerged company and resulting company in the proportion of assets of retained undertakings v. assets of demerged undertaking 38
Demerger …
Demerger of closely held companies – position of losses – S. 79 A Family Shldrs. 100% 100% B Family Shldrs. A Family Shldrs. B Family Shldrs. 30% 70% Undertaking of A Pvt. Co.
+ B Pvt. Co.
Resulting co. has losses = B Pvt. Co. + Undertaking of A Pvt. Ltd.
S. 79 could apply • S. 79 applies only to companies other than ‘company in which the public are substantially interested’ – S.2(18) of the ITA • Does not affect the ability to carry forward unabsorbed depreciation • Shri Subhulaxmi Mills Ltd. 249 ITR 795 (SC) • Whether S. 72A overrides S. 79 (this being a latter provision in the ITA) 39
Demerger …
• Applicability of S. 79 to Indian Sub. of foreign company • S.79 will not trigger provided 51% of shldrs. of foreign demerged company continue to be shldrs. of the foreign resulting company – proviso to S.79 of the ITA 40
Demerger …
• Implications for the shareholders of demerged company • Receipt of shares of the resulting company not regarded as dividend – clause (v) of S.2(22) of the ITA • • • Exempting provision whether necessary?
Non-compliance of S.2(19AA) – whether dividend distribution tax payable by demerged company where shares issued by resulting company? • On what amount – face value or book value or market value?
In case demerger does not satisfy the requirements contained in S.2(19AA) can it result in any tax liabilities in the hands of the shareholders 41
Demerger …
• • • Cost of acquisition of shares of resulting company = Cost of shares X Net book value of assets transferred Net worth of demerged co. before demerger Cost of acquisition of shares of demerged company = actual cost less cost attributable to share of resulting company Period of holding to include the period for which the shares of the demerged company were held – Expln. 1(g) below S.2(42A) of the ITA 42
Demerger …
• Implications for employees who have been granted stock options under a qualifying ESOP • • New plan to be formulated by resulting company Taxation may not be deferred to the point of sale as shares would be allotted to employees of the demerged company 43
Succession of partnership firm by a company
44
Succession of PF by a Co.
Scenario 1 Partners 1 to 7 A , an individual PSR:50:50 Capital: 10:90 AB B Co.
AB Scenario 2 Partners 8 to 14 CD A, an individual . 10% ITA 90% B Co.
AB Co.
Co. Act – Part IX min. 7 partners Partners 1 to 7 50% ABCD Co.
Partners 8 to 14 50% 45
Succession of PF by a Co. …
• • Conversion of PF into a Co. in terms of Part IX of the Co. Act – does not trigger taxation • Texspin Engineering and Manufacturing Works 263 ITR 345 (Bom.) – AY 1996-97 Transfer of a capital asset or intangible asset by a firm to a company as a result of succession of the firm by a company in the business carried on by the firm is disregarded for S.45 of the ITA – refer S.47(xiii) inserted in the ITA vide Finance Act (No.2), 1998 – w.e.f. 1 April 1999 • Whether amendment necessary?
46
Succession of PF by a Co. …
• Benefit of S.47(xiii) available provided – • • All assets and liabilities of the PF relating to the business become assets and liabilities of the company • • PF carrying on two businesses – only one is proposed to be housed in a company – possible?
Revaluation of assets?
all partners become shldrs. of company in the same proportion in which their capital accounts stood in the books of the firm on the date of succession • Fixed v Current account • • Equity – voting v non-voting Equity v Preference 47
Succession of PF by a Co. …
• • • partners not to receive any consideration or benefit directly or indirectly, in any form or manner, other than by way of allotment of shares in the company • Bonds, debentures, etc. not possible aggregate shareholding of partners in the company should not be less than 50% of the total voting power and should continue for a period of 5 years from the date of succession Non-compliance of conditions triggers taxation – chargeable profits and gains taxed in the hands of the successor company in the year of contravention - S.47A(3) of the ITA 48
Succession of PF by a Co. …
• • • ‘Accumulated loss’ and unabsorbed depreciation allowance of PF transferred to successor company – S.72A(6) – no separate conditions to be complied with • Non-compliance of conditions contained in S.47(xiii) will result in the loss and depreciation amount set off earlier being regarded as income of the year in which contravention is made Period of holding shares of the successor company for partners = date of allotment or date from which the partner joined partnership?
Cost of acquisition of shares of the successor company = capital account immediately before the date of succession?
49
Succession of a sole proprietorship by a company
50
Succession of sole proprietorship concern by a Co.
• Sale or transfer of a capital asset or intangible asset by a sole proprietorship concern to a company as a result of succession of the sole proprietorship concern by a company in the business carried on by the sole proprietorship concern is disregarded for S.45 of the ITA – refer S.47(xiv) inserted in the ITA vide Finance Act (No.2), 1998 – w.e.f. 1 April 1999 51
Succession of sole proprietorship concern by a Co. …
• Benefit of S.47(xiv) available provided – • • • All assets and liabilities of the sole proprietorship concern relating to the business being succeeded become assets and liabilities of the company • Revaluation of assets?
shareholding of the sole proprietor in the company should not be less than 50% of the total voting power and should continue for a period of 5 years from the date of succession sole proprietor not to receive any consideration or benefit directly or indirectly, in any form or manner, other than by way of allotment of shares in the company 52
Succession of sole proprietorship concern by a Co. …
• • Non-compliance of conditions triggers taxation – chargeable profits and gains taxed in the hands of the successor company in the year of contravention - S.47A(3) of the ITA ‘Accumulated loss’ and unabsorbed depreciation allowance of PF transferred to successor company – S.72A(6) – no separate conditions to be complied with • Non-compliance of conditions contained in S.47(xiv) will result in the loss and depreciation amount set off earlier being regarded as income of the year in which contravention is made 53
Succession of sole proprietorship concern by a Co. …
• • Period of holding shares of the successor company for sole proprietor = date on which business commenced ? Cost of acquisition of shares of the successor company in the hands of sole proprietor = net book value of assets transferred or intrinsic value of business transferred?
54
Indian Companies Act, 1956 – some relevant provisions
55
Relevant provisions under Co. Act
• • • S. 391 of the Co. Act allows a company to make an application to the Court where a ‘compromise’ or ‘arrangement’ is proposed between a company and – • its creditors or any class of them; or • its members or any class of them S.391 is a complete code by itself Court convened meeting to be held for seeking views of stakeholders • Compromise or arrangement binding on all stakeholders if a majority in number representing 75% in value of each class of stakeholder agree to the compromise or arrangement 56
Relevant provisions under Co. Act …
• • Court to sanction scheme of compromise or arrangement after hearing all affected parties • • Fairness of the Scheme • Miheer H. Mafatlal v. Mafatlal Industries Ltd. 87 CC 792 (SC) • Shri Ambica Mills Ltd. 59 CC 368 (Guj.) Valuation of shares – swap ratio • Miheer H. Mafatlal v. Mafatlal Industries Ltd. 87 CC 792 (SC) • Hindustan Lever Employees Union v. Hindustan Lever Ltd. 83 CC 30 (SC) Court has power to supervise the carrying out the compromise or an arrangement (S.392 of Co. Act) 57
Relevant provisions under Co. Act …
• • Amalgamation of a Foreign Company or an ‘undertaking’ of a Foreign Company into an Indian Company • Moschip Semiconductor Technology Ltd. In Re. - 120 CC 108 (AP) – merger of a foreign company • Bank Muscat S.A.O.G., In Re. - 120 CC 340 (Kar.) – merger of a branch of a foreign company Scheme designed with the objective to avoid tax • Wood Polymer Limited 47 CC 597 (Guj.) – against • • Indo-Continental Hotels and Resorts Ltd. 69 CC 93 (Raj.) – in favor – tax exemption a consequence McDowell and Co. Ltd. 154 ITR 148 (SC) 58
Relevant provisions under Co. Act …
• • • Amalgamating company to liquidate without being wound up Reduction of capital – S. 100 of Co. Act – separate procedure laid down Buy-back of shares – can be part of S.391 scheme • SEBI v. Sterlite Industries (India) Ltd. 113 CC 273 (Bom.) 59
Relevant provisions under Co. Act …
• Components of a S. 391 Scheme • • Parties to the Scheme Rationale / Objective • • Business of the entities Proposal • Amalgamation / demerger • Issue of shares, debentures, etc.
• Other obligations – guarantees, employees, etc.
• Accounting treatment in the books of transferor and transferee companies • Modifications to the Scheme 60
SEBI Regulations – some relevant provisions
61
SEBI Regulations
• SEBI (Disclosure & Investor Protection) Guidelines, 2000 • Clause 8.3.5.1 – listing of the unlisted company issuing shares to shareholders of the listed company pursuant to a Scheme approved by the Court. Conditions to be satisfied (amongst others) • Listing is in terms of the Scheme of arrangement sanctioned by the High Court • At least 25% of the paid up share capital, post scheme, of the unlisted transferee company comprises of shares allotted to public holders of shares in the listed transferor company • No warrants / instruments / agreements outstanding which gives right to any person to take the shares at any future date • Lock-in-period for promoter holdings 62
SEBI Regulations …
• SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 • • Apply with relation to acquisition of shares of a listed company by an ‘acquirer’ above a prescribed ceiling Acquirer to make open offer • Requirement to make open offer does not apply where shares have been acquired pursuant to a scheme of arrangement or reconstruction including amalgamation or merger or demerger under any law or regulation, Indian or foreign • Whether only schemes approved in terms of S.391 of the Co. Act covered – would this make reference to “foreign” law or regulation otiose ?
63
Listing agreement – some relevant provisions
64
Listing agreement
• Requirements contained in listing agreement to be complied with – particularly sub-clauses (f), (g) and (h) of clause 24 of the Listing Agreement • • • Scheme to be filed with the Stock Exchange for approval at least a month in advance before it is presented to the Court Company agrees to ensure that the Scheme does not violate, override or circumscribe securities law or the stock exchange requirements Explanatory statement to disclose pre-and post arrangement or amalgamation capital structure and shareholding pattern 65
FEMA – some relevant provisions
66
FEMA
• FEM (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 • General permission granted to transferee company to issue its shares to the shareholders (being persons resident outside India) of the transferor company provided – • FDI in the transferee company does not exceed the limits prescribed; • Transferor company or the transferee or new company shall not engage in agriculture, plantation or real estate business or trading in TDRs; and • Pre and post issue information and confirmation that conditions stipulated in the Scheme have been complied with 67
Glossary of Terms
• • • • • • • • • • • • CBDT – Central Board of Direct Taxes Co. Act – Companies Act Eq. Sh. – Equity Shares FCCB – Foreign Currency Convertible Bonds FDI – Foreign Direct Investment FEMA – Foreign Exchange Management Act Hold Co. – Holding Company ITA – Income-tax Act PF – Partnership firm RBI – Reserve Bank of India Shldr. – Shareholder WOS – Wholly Owned Subsidiary 68
Thank You !
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